Washington, D.C. - The
Inter-American Commission on Human Rights (IACHR) held its 160th
special session on December 9-10, 2016, at its headquarters. The
session included six public hearings on issues involving Canada and
the United States, and one day of internal meetings. The Commission
also presented its thematic report on human mobility and
Inter-American standards.

The Commission thanks
the civil society organizations and representatives of the States of
Canada and the United States for participating in the hearings. The
IACHR also appreciates the special funding from the United States
that made it possible to organize this special session at the
Commission’s headquarters.

In commemoration of
Human Rights Day, the Commission presented its report “Human Rights
of Migrants, Refugees, Stateless Persons, Victims of Human
Trafficking and Internally Displaced Persons: Norms and Standards of
the Inter-American Human Rights System.” The Commission underscored
the importance of protecting and promoting human rights for the
peoples of the Americas.

“There’s no such thing
as an ‘illegal’ person. The use of such terms reinforces the
criminalization of migrants and the false stereotype that migrants
are criminals for the simple fact of being in an irregular
situation,” Commissioner Enrique Gil Botero said. “A person’s
irregular entry or stay in a country is not a criminal offense but
an administrative misdemeanor. ‘Legal’ or ‘illegal’ are not
qualities that can be ascribed to human beings.” Those who
participated in the event included the Secretary General of the
Organization of American States (OAS), Luis Almagro; Michel Pinard,
Permanent Observer of France to the OAS; James Cavallaro, President
of the IACHR; Enrique Gil Botero, Rapporteur on the Rights of
Migrants; Paulo Abrão, IACHR Executive Secretary; and numerous
representatives of Permanent Missions to the OAS, along with
representatives of civil society and IACHR staff.

The Commission held a
public hearing on “Case 10.573 - Salas and others”, in
which petitioner Gilma Camargo and representatives of the United
States participated. The petitioner indicated that the State is
responsable for the military operation carried on in Panama City,
Panama, on December 20, 1949. The petitioner alleged that the US
military operation caused the deaths of hundreds of Panamanian
civilians. She also said that hundreds of people were injured and
thousands of people lost their homes. Shee added that some people
are missing to date. The petitioner indicated that to date the
victims have not been duly compensated. Yolanda Cortéz offered her
testimony about the facts of the case. The State alleged that it is
not internationally responsible. The United States alleged that the
military operation observed the general principles of International
Law. In addition, the State requested that the IACHR archives the
case. This is due to the passage of time since the submission of the
petition, and due to the newly conformation of a truth commission in
Panama called "The December 20 Commission". The State alleged that
this commission, which has received the support of the United
States, will be responsible for identifying the victims of the
events, as well as the corresponding responsibilities.

In the hearing “Human
Rights Situation of Indigenous Persons in the Context of Projects
and Extractive Industries in the United States”, the Cheyenne,
Yankton and Standing Rock Sioux tribes came to inform the Commission
about the United States’ government’s failure to fulfil their
obligations regarding indigenous people’s rights in the context of
extractive projects. The representatives insisted on the excessive
use of force that was deployed against peaceful protesters at
Standing Rock, denouncing the use of water cannons, grenades, attack
dogs, rubber bullets containing shrapnel, and highlighting three
particular incidents that had terrible consequences on the physical
integrity of three women. They also highlighted the failure of the
State to consult tribal governments during the licensing process and
prior to rerouting the Dakota Access Pipeline to lands adjacent to
their reservations, on sites of religious significance to them, and
beneath water sources such as the Missisipi river and Lake Oare,
thereby violating national statutes and applicable international
standards. The representatives also indicated to the Commission that
the State did not meet the environmental review requirements for
projects that affect indigenous natural resources and had not
undertaken a full environmental impact statement. The State, for its
part, insisted on the fact that the Army Corps of Engineers had
finally denied the access to the easement under the river, to allow
for additional environmental studies and further consultation with
indigenous people. Members of the State panel, from the Army Corps
of Engineers, the Advisory Council on Historic Preservation, and the
Justice Department, all acknowledged the need to improve
consultation with tribal governments, to make it meaningful and
timely, as well as recognized the need for a full environmental
impact statement.

In the hearing “Human
Rights Situation of Asylum Seekers in the United States”, the
organizations that requested the hearing noted that in certain
jurisdictions in the United States, immigration judges and
prosecutors use open and notorious sub-regulatory rules that have no
normative legal legitimacy to create asylum free zones, spaces where
asylum seekers are systematically denied protection, such as the
Atlanta and Charlotte immigration courts. The organizations also
stated that while the appeal process for asylum cases is designed to
fix errors in case-by-case adjudication, it does nothing to address
flaws in the design of the system of adjudication. Indeed, the
appeal process has not corrected the abnormality in adjudications as
the trend line has worsened over time in these asylum free zones.
The organizations stressed that the existence of jurisdictions where
asylum seekers have no hope of international protection violates the
American Declaration on the Rights and Duties of Man and requires
the U.S. government to design corrective actions to come into
compliance with its human rights obligations. The State recognized
that the Executive Office for Immigration Review (EOIR), an office
of the U.S. Department of Justice, has taken several steps to
address these important issues. In November 2008, EOIR took the
following 3 steps: 1. identified the “outlier” immigration judges in
terms of their asylum grant rates; 2. examined their professional
conduct and legal performance and; 3. Conducted training with
immigration judges. The State also pointed out that in November
2016, GAO issued an updated study on the variation of the outcomes
of completed asylum applications between 1995 and 2014 and across
immigration courts and judges. The Government Accountability Office
(GAO) found that disparities in asylum decision making still
persisted among immigration courts, including low rates in certain
courts, such as Atlanta. The GAO established that there were
variables that impacted these rates, such as whether the applicant
was represented by counsel, had dependents, and the number of years
the immigration judges were on the bench. The IACHR called
attention to its concern about the disparities in asylum decisions
of the immigration courts in Atlanta and Charlotte, stating if this
is personal discriminatory consideration by the judges. The
Commission also stated that bias is not an unusual occurrence in
courts. The IACHR also stated that these disparities in asylum grant
rates could be based in racial, national, area community, religious
and gender discrimination.

In the hearing “Human
Rights Situation of Indigenous Children in Canada" the
organization that requested the hearing provided information on the
discrimination faced by aboriginal children in access to basic
services as well as the challenges of the current child welfare and
protection policies in providing adequate care for aboriginal
children. According to this organization, the State of Canada has
historically and consistently failed to provide access to quality,
tailored and equal public services for aboriginal children compared
to services provided to non-aboriginal children. This situation
would mean that First Nations children are 12 times more likely to
be placed in foster care than non-aboriginal children, which in
practice means perpetuating the assimilation policy that the State
had operated in the past. About 163,000 indigenous children living
in reserves would be suffering from this discrimination in access to
basic services and family welfare. The Canadian Court of Human
Rights in a 2016 ruling found that Canada discriminated against the
services it provided to aboriginal children and that this resulted
in the separation of many children from their families. A chronic
inequitable financing of child welfare services in indigenous
reserves would contribute to this situation. The State declared
Canada's commitment to First Nations while recognizing the
challenges in the field of protection of indigenous children. In
this regard, State representatives presented a number of measures
being taken to comply with the decision of the Canadian Human Rights
Court, although they recognized that medium- and long-term measures
to overcome this discrimination are still pending. These measures
will be consulted with the First Nations and will require sufficient
funding to overcome the current situation. The State made itself
available to the IACHR to continue to provide information on this
process.

In the hearing “Right to Freedom of Expression and Antiterrorist
Legislation in Canada”, the
delegation of the CanadianJournalists for Free Expression (CJFE)
expressed concerns regarding the implementation of the Antiterrorism
Act, 2015 (also known as Bill C-51), which grants broads
powers to the State in order to monitor communications, share
information and place people on a "no‐fly list", among others. The
delegation of CJFE highlighted that Part 3 of the Anti‐terrorism Act
amends the Criminal Code to penalize those who publish statements
that promote the commission of terrorism offenses in general,
without providing a definition of this conduct. According to the
applicant, this disposition is the most troubling component of the
Anti‐terrorism Act for the right to freedom of expression, as it
could criminalize protected speech and captures an overly broad
range of communications, including words spoken, written, and
private, among others. On the other hand, the delegation of the
State of Canada reiterated Canada’s commitment to the protection of
human rights and stated that the Anti-Terrorism Act contemplates
check and balances mechanisms that meet national legislation and
international standards. Commissioner Cavallaro asked the State on
the application of the international standard mens rea to the
Anti-Terrorism Act, expressed his concern about the difficulties to
delist people from the "no‐fly list", and stressed that it is
problematic that the State could share information without proper
safeguards. Furthermore, the Special Rapporteur on Freedom of
Expression highlighted the increasing amount of attacks and
harassment cases against journalist, due to the enactment laws that
restrict freedom of expression; and offered the technical assistance
of the Office of the Special Rapporteur to the State of Canada to
protect the right to freedom of expression in the fight against
terrorism. The Special Rapporteur as well expressed concern about
the vague and ambiguous definition of the criminal figure that
criminality "defense and promotion of terrorism". The Special
Rapporteur for Freedom of Expression asked on the impact of the
powers of communication surveillance upon the confidentiality of
journalistic sources and requested further information regarding the
amount of people included in the "no‐fly list" as well as the
reasons for their inclusion. CJFE delegation stressed its concern
regrinding the possible criminalization of journalists for reporting
statements made by accused terrorists and broad construction of the
Anti-Terrorism Act to allow general communication surveillance
measures in secret. The delegation of the State of Canada
acknowledged the importance of the conversation with organizations
of the civil society and informed that will provide further
information in response to the questions of Commissioner Cavallaro
and the Special Rapporteur for Freedom of Expression.

In the hearing “Situation
of Disappearance and Murders of Indigenous Women and Girls in Canada”,
the Native Women’s Association of Canada and the Feminist Alliance
for International Action informed the IACHR on the shortcomings in
the terms of reference for the national inquiry on Murdered and
Missing Aboriginal Women. The requesting organizations underscored
that said terms of reference do not integrate a human rights
approach and do not incorporate the recommendations of the IACHR and
the United Nations Committee for the Elimination of Discrimination
against Women (the “CEDAW”). They argued that they do not provide
for adequate witness support. They also argued that the terms of
reference made no mention of any formal or informal participation of
indigenous women’s organizations in the inquiry, choosing men-led
organizations rather than ones that had lengthy experience on
women’s issues in general, and extensive knowledge of the problem of
murdered and missing indigenous women in particular. In addition,
the terms of reference fail to examine policing practices or to
provide for an independent review mechanism for cases of alleged
inadequacy and partiality in police investigations, which is of
concern given that police officers are at times the perpetrators of
violence against indigenous women, as was once again revealed in the
recent scandal in Val d’Or. The State reiterated its commitment to
improve its relationship with indigenous people in Canada, and its
recognition of the importance of properly addressing the issue. It
also highlighted the various efforts it was making to set in place a
National inquiry that was culturally appropriate and had the
adequate human and financial resources to provide meaningful
solutions to this national tragedy.

Those who participated in the 160th regular session included the
President of the IACHR, James L. Cavallaro; the First
Vice-President, José Eguiguren Praeli; the Second Vice-President,
Margarette May Macaulay; Commissioners José de Jesús Orozco
Henríquez, Paulo Vannuchi, Enrique Gil Botero, and Esmeralda
Arosemena de Troitiño; the IACHR Executive Secretary, Paulo Abrão;
the Assistant Executive Secretary, Elizabeth Abi-Mershed; the
Special Rapporteur for Freedom of Expression, Edison Lanza; and
other members of the IACHR Executive Secretariat.

A
principal, autonomous body of the Organization of American States
(OAS), the IACHR derives its mandate from the OAS Charter and the
American Convention on Human Rights. The Inter-American Commission
has a mandate to promote respect for human rights in the region and
acts as a consultative body to the OAS in this area. The Commission
is composed of seven independent members who are elected in an
individual capacity by the OAS General Assembly and who do not
represent their countries of origin or residence.